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Filed 11/29/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK DAMON FOLEY,

Defendant and Appellant.

C097140

(Super. Ct. No. 94F617)

APPEAL from a judgment of the Superior Court of Shasta County, Daniel E. 

Flynn, Judge. Reversed.

James Bisnow, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Brook A. Bennigson and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

The trial court appointed the same attorney (counsel) to represent Mark Damon 

Foley (defendant) and Raymond Edward Gladden, who had been a codefendant in the 

underlying criminal trial, at a consolidated evidentiary hearing after both had filed 

separate petitions for resentencing. Both men were not the actual killer, but both had 
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been convicted of murder on a felony-murder theory. At the hearing, to save the murder 

convictions, the prosecution was required to prove that defendant’s and Gladden’s 

individual participation in the underlying felony of kidnapping made them major 

participants in the kidnapping and that they acted with reckless indifference to human 

life. The prosecution argued those elements were satisfied for defendant and Gladden. 

Counsel then argued factors she considered favorable to defendant and also argued

factors favorable to Gladden. But the same factors did not favor both, and counsel stated 

Gladden “certainly [had] the stronger petition.” The court granted Gladden’s petition 

only.

We reverse the denial of defendant’s petition because the court violated 

defendant’s constitutional right to conflict-free representation. We remand for a new 

evidentiary hearing. 

FACTUAL AND PROCEDURAL BACKGROUND

I

The Underlying Crimes

In 1995, defendant and two codefendants, Gladden and Patrick Francis 

Cummings, were convicted of first degree murder arising out of a plot to kidnap, assault, 

and extort Duane McBroome. Cummings was the actual killer. In both the trial and 

direct appeal, defendant and Gladden had separate counsel. We summarize the facts of 

the crimes based on our prior opinion in the direct appeal because the parties stipulated to 

these facts at the evidentiary hearing. (People v. Foley (Sept. 30, 1999, C022388 & 

C022361) [nonpub. opn.].) 

Defendant spent time in prison with Gladden, Cummings, and McBroome at 

various times during the 1980s and 1990s. While out on parole, McBroome bought 

methamphetamine from Gladden on credit but never paid him back. The two also 

developed a conflict concerning McBroome’s former girlfriend. After defendant was 

released from custody, he acted as a middleman and debt collector for Gladden’s drug 
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business. Gladden tasked defendant with collecting $1,800 from McBroome and told 

defendant he wanted McBroome’s front teeth knocked out. Defendant “drove around 

looking” for McBroome and “generally carried a gun.” After Cummings was released 

from custody, he began assisting defendant in the search for McBroome. 

On January 31, 1994, defendant ran into McBroome in a parking lot while 

McBroome was negotiating various drug deals. Defendant yelled to McBroome: 

“ ‘Come here. I want to talk to you.’ ” When McBroome did not respond, defendant told 

him: “ ‘I will cap you [shoot you] if I have to right here.’ ” Defendant then pointed a gun 

at McBroome and his driver, got into the driver’s car with McBroome, and told the driver

that he would not be hurt as long as he drove them where he was told. Defendant 

directed the driver to the house where Cummings was staying and mentioned he was 

being paid $1,000 to take McBroome to someone. 

At the house, defendant and McBroome went inside and the driver initially stayed 

in the car. A woman whom we will refer to as Cummings’ girlfriend was also at the 

house, as was defendant’s girlfriend. The driver eventually joined them inside, and the 

group used methamphetamine together. Defendant held his gun on his lap while he and 

McBroome talked about their time in prison. At some point, defendant became angry 

when he perceived that the driver was becoming too friendly with his girlfriend. 

Defendant waved the gun at the driver and yelled at him to stop “ ‘hitting on his old 

lady.’ ” Defendant’s girlfriend left the house. Sometime later, McBroome’s former 

girlfriend and Cummings arrived. McBroome and his former girlfriend yelled at each 

other. Defendant and Cummings briefly went into the kitchen together. Cummings’ 

girlfriend asked Cummings to get everyone out of the house. Defendant and Cummings 

told the women to go into another room. Cummings picked up defendant’s gun, walked 

up to McBroome, knocked him out of his chair with a hard blow to the head, followed by 

a second blow, and then shot him in the chest. After shooting McBroome, Cummings 
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picked him up, slammed him into a window, and threw him on the ground, where he died

from the gunshot wound. 

Defendant took the gun with him when he left the house and threw it out the 

window while driving to inform Gladden. Cummings later disposed of McBroome’s 

body and told Gladden what happened. Defendant told two separate people that he 

wanted to find and kill the driver “to make sure he did not talk” and “because [he] had 

been a witness to the murder.” 

II

The Petitions for Resentencing

In 2019, defendant and Gladden filed separate petitions for resentencing under 

Penal Code section 1172.6.

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 The trial court consolidated the petitions and appointed 

counsel to represent both men at the consolidated evidentiary hearing. 

At the consolidated hearing, the prosecution and counsel stipulated to the facts in 

our prior opinion. Counsel then argued that neither defendant nor Gladden intended for 

McBroome to be killed: “at the worst,” counsel argued, they intended for a kidnapping to 

occur. McBroome was “doing drugs and partying” with defendant and others when 

“Cummings on his own initiated a conflict . . . and thereafter killed him.” Counsel 

disputed that the evidence supported a conclusion that Gladden engaged defendant to 

collect a debt from McBroome but argued that even if the trial court found that to be the 

case, and further found that defendant kidnapped McBroome for purposes of extortion, 

there was no evidence that either defendant or Gladden intended McBroome’s death. 

1 Undesignated statutory references are to the Penal Code. Defendant petitioned for 

resentencing under former section 1170.95. Effective June 30, 2022, the Legislature 

renumbered former section 1170.95 as section 1172.6 without substantive changes. 

(Stats. 2022, ch. 58, § 10.) We shall refer to the current section throughout this opinion.
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Counsel then argued that Cummings had “a personal vendetta” against McBroome and 

decided “on his own . . . to take [defendant’s] gun and shoot him.” 

With respect to Gladden specifically, counsel pointed out that Gladden was not 

present at the scene of the murder, did not supply a weapon, did not assist in the 

concealment of the murder weapon or the body, and did not direct either defendant or 

Cummings to kill McBroome. Counsel argued that, “at the worst,” Gladden asked 

defendant to knock McBroome’s teeth out, not kill him. Counsel also argued “you don’t 

kill your customers or you wouldn’t be a very profitable drug dealer.” 

Turning to defendant, counsel argued that while defendant brought McBroome 

over to the house where Cummings was staying, and apparently had Cummings 

summoned to the house, any kidnapping ended when they were in the kitchen and 

Cummings took his gun. Counsel concluded by arguing that even if Gladden engaged 

defendant to collect a debt from McBroome, “it wasn’t reasonably apparent to them at the 

time that Mr. Cummings would come in, take [defendant’s] gun, and kill him.” 

The trial court then stated that it did not see evidence that either defendant or 

Gladden were the actual killer or possessed an intent to kill and asked the prosecutor to 

address whether they were major participants in the underlying felony and acted with 

reckless indifference to human life. The prosecutor argued those elements were satisfied 

for both defendant and Gladden. 

It was then counsel’s turn. The bulk of counsel’s response addressed Gladden’s 

level of culpability and acknowledged Gladden “certainly [had] the stronger petition.” 

Counsel’s only response with respect to defendant was that McBroome “ripped off most 

of the drug dealers in the area, and many people were gunning for him,” defendant “was 

enlisting all those people to get after him” but “didn’t supply them with weapons,” and 

defendant “let go of his own gun.” Counsel argued defendant and McBroome were “just 

partying like that’s what their general associations involve, not violence.” Counsel 
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concluded by repeating that “there [was] no indication . . . that either [defendant or 

Gladden] entered into some type of agreement” to have McBroome killed. 

The trial court took the matter under submission and then issued a ruling granting 

Gladden’s petition and denying defendant’s petition. The court concluded that defendant 

“was a major participant (in truth the principal in) the underlying felony, and acted with 

reckless indifference to human life.” 

On appeal, defendant contends the trial court committed reversible error by 

violating his state and federal constitutional right to conflict-free counsel. Alternatively, 

he contends the evidence is insufficient to support the trial court’s finding he acted with 

reckless indifference to human life. We agree with defendant’s first contention and, as a 

result, have no need to address his alternative contention.

DISCUSSION

Defendant contends the trial court violated his state and federal constitutional right 

to conflict-free representation by allowing counsel to represent him and Gladden at the 

consolidated evidentiary hearing on their petitions for resentencing. We agree. 

Section 1172.6 requires appointment of counsel “upon the filing of a facially 

sufficient petition.” (People v. Lewis (2021) 11 Cal.5th 952, 970.) If the petitioner 

makes a prima facie showing of entitlement to relief, as defendant did here, the court 

must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), 

(d).) At the hearing, “the burden of proof is on the prosecution to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing.” (People v. Myles

(2021) 69 Cal.App.5th 688, 696.) 

In addition to the statutory right to the assistance of counsel in pursuit of relief 

under section 1172.6, a criminal defendant has a constitutional right to counsel, 

guaranteed by the Sixth Amendment to the United States Constitution and article I, 

section 15 of the California Constitution, “ ‘at all critical stages of the criminal process’ ” 

(Marshall v. Rodgers (2013) 569 U.S. 58, 62), including sentencing and resentencing 
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hearings. (People v. Rouse (2016) 245 Cal.App.4th 292, 296-297; see also People v. 

Cutting (2019) 42 Cal.App.5th 344, 348.) 

The parties assume this constitutional right applies in the context of a resentencing 

petition under section 1172.6. We conclude it does, at least where the trial court issues 

an order to show cause and holds an evidentiary hearing. While a defendant generally 

“has no constitutional right to counsel with respect to statutory postconviction motions 

seeking a reduction in sentence” (People v. Rouse, supra, 245 Cal.App.4th at p. 298), the 

trial court does not issue an order to show cause and hold an evidentiary hearing under 

section 1172.6 unless the defendant has made a prima facie showing of entitlement to 

relief. The situation is therefore similar to a postconviction habeas corpus proceeding

where the appointment of counsel is demanded by due process concerns if the petition 

attacking a judgment’s validity states a prima facie case leading to an order to show 

cause. (See People v. Frazier (2020) 55 Cal.App.5th 858, 865.) 

Having reached this conclusion, we turn to whether counsel’s dual representation

at the evidentiary hearing violated defendant’s constitutional right to counsel. To 

establish such a violation, defendant must show: (1) counsel labored under an actual 

conflict of interest that adversely affected counsel’s performance (the deficient 

performance requirement), and (2) absent counsel’s deficiencies arising from the conflict, 

it is reasonably probable the result of the proceeding would have been different (the 

prejudice requirement). (People v. Johnson (2018) 6 Cal.5th 541, 578.) 

Beginning with the deficient performance requirement, an actual conflict of 

interest between codefendants may arise where, for example, counsel for multiple 

defendants “might injure one defendant by arguments in favor of another.” (People v. 

Odom (1965) 236 Cal.App.2d 876, 878.) Determining whether counsel’s performance 

was adversely affected by such a conflict requires an inquiry into whether counsel 

“ ‘failed to represent defendant as vigorously as he [or she] might have, had there been no 
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conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record.’ ” 

(People v. Doolin (2009) 45 Cal.4th 390, 418 (Doolin).) 

In People v. Chacon (1968) 69 Cal.2d 765 (Chacon), our Supreme Court held 

concurrent representation of multiple defendants during a capital murder trial violated the 

state and federal constitutional rights to effective assistance of counsel. (Id. at pp. 775-

777.)2 Explaining that an actual conflict between the codefendants existed, the court 

stated: “Conflicts of interest necessarily exist when the jury must fix the penalty for 

more than one defendant. Often the strongest argument that separate counsel can make 

on the issue of penalty is that his [or her] client was less culpable than the others and that 

[the client], at least, should not be executed. In addition, [counsel] must be free to stress 

particular mitigating elements in his [or her] client’s background or other individual 

mitigating factors that may not apply to a codefendant. Counsel representing more than 

one defendant is necessarily inhibited in making such arguments and in presenting 

evidence to support them. [Counsel] cannot simultaneously argue with any semblance of 

effectiveness that each defendant is most deserving of the lesser penalty. Moreover, the 

conflict is not limited to the trial on the issue of penalty, for normally the same jury 

determines both the issue of guilt and the issue of penalty. Counsel must therefore 

conduct the defense throughout the entire trial to stress evidence and considerations to 

support the lesser penalty. Counsel appointed to represent more than one defendant when 

the jury must fix the penalty for each is forced . . . to treat his [or her] clients as a group 

and to abandon arguments that would apply to each separately.” (Chacon, supra, 

69 Cal.2d at p. 775.) The court then concluded the attorney’s performance was adversely 

2 Chacon was disapproved in Doolin “to the extent that [it] can be read to hold that 

attorney conflict claims under the California constitution are to be analyzed under a 

standard different from that articulated by the United States Supreme Court.” (Doolin, 

supra, 45 Cal.4th at p. 421, fn. 22.) 
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affected by the conflict because the attorney was unable to make individualized 

“arguments in favor of each defendant to dissociate him from his codefendants’ 

cases . . . .” (Id. at p. 776.) 

Here, the trial court was tasked with determining whether the prosecution had 

proven beyond a reasonable doubt that defendant was a major participant in the 

underlying felony with reckless indifference to human life. Several interrelated factors 

are relevant to the analysis. As in Chacon, an attorney representing a defendant at an 

evidentiary hearing under section 1172.6 must be free to stress particular factors that she 

believes favor her client even where those same factors might not apply to a codefendant. 

And where, as here, the attorney represents more than one defendant seeking relief under 

the new law, she “is necessarily inhibited in making such arguments and in presenting 

evidence to support them” and “cannot simultaneously argue with any semblance of 

effectiveness that each defendant is most deserving of” having his murder conviction 

vacated. (Chacon, supra, 69 Cal.2d at p. 775.) Indeed, here, counsel explicitly 

acknowledged that Gladden was more deserving of reduced punishment, noting that he 

“certainly [had] the stronger petition.” And each factor that she argued in favor of 

Gladden that did not also apply to defendant put her argument for Gladden at odds with 

defendant’s interests. We conclude defendant has established that counsel labored under 

an actual conflict of interest that adversely affected her performance at the evidentiary 

hearing on defendant’s resentencing petition. 

Turning to the prejudice requirement, a limited presumption of prejudice arises 

where defendant demonstrates that his lawyer “ ‘actively represented conflicting 

interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s 

performance.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 692, quoting Cuyler v. 

Sullivan (1980) 446 U.S. 335, 350.) Because defendant made such a showing, we must 

presume prejudice occurred and reverse the order denying defendant’s petition for 

resentencing. As our Supreme Court has stated, “ ‘the high probability of prejudice 
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arising from multiple concurrent representation, and the difficulty of proving that 

prejudice’ justifie[s] application of the presumption.” (Doolin, supra, 45 Cal.4th at 

p. 418, quoting Mickens v. Taylor (2002) 535 U.S. 162, 175.)

DISPOSITION

The order denying defendant’s petition for resentencing under Penal Code section 

1172.6 is reversed, and the matter is remanded for a new hearing on defendant’s petition

with conflict-free representation.

 /s/

MESIWALA, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

BOULWARE EURIE, J.